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Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 120, Issue 2 of Michigan Law Review

On Time, (In)Equality, And Death, Fred O. Smith Jr.

Michigan Law Review

In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition.

Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of …

Failed Interventions: Domestic Violence, Human Trafficking, And The Criminalization Of Survival, Alaina Richert

Michigan Law Review

Over the last decade, state legislators have enacted statutes acknowledging the link between criminal behavior and trauma resulting from domestic violence and human trafficking. While these interventions take a step in the right direction, they still have major shortcomings that prevent meaningful relief for survivor-defendants. Until now, there has been no systematic overview of the statutes that require courts to consider a defendant’s history of trauma in the contexts of domestic violence and human trafficking. There has also been no attempt to explore how these statutes relate to each other. This Note fills those gaps. It also identifies essential elements …

Municipal Reparations: Considerations And Constitutionality, Brooke Simone

Michigan Law Review

Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia’s discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow …

United States V. Texas: Brief Of Legal Scholars Leah Litman, Erwin Chemerinsky, Michael C. Dorf, Barry Friedman, And Fred O. Smith As Amici Curiae In Support Of Petitioner, Leah Litman

Appellate Briefs

Amici curiae are constitutional law scholars who teach and write in the fields of constitutional law and federal courts. They share an interest in promoting the appropriate role of the federal courts in maintaining the supremacy of federal law, and in preserving our federal constitutional system and the rule of law.<\p>

In this case, this Court is asked to consider whether the United States may seek relief in federal court to protect constitutional rights in the face of state subterfuge designed to undercut those rights. Texas’s efforts to evade judicial review of Senate Bill 8 (“S.B. 8”) are central to …

Caring For The Souls Of Our Students: The Evolution Of A Community Economic Development Clinic During Turbulent Times, Gowri J. Krishna, Kelly Pfeifer, Dana Thompson

Articles

Community Economic Development (CED) clinicians regularly address issues surrounding economic, racial, and social justice, as those are the core principles motivating their work to promote vibrant, diverse, and sustainable communities. When COVID-19 arrived, and heightened attention to police brutality and racial injustice ensued, CED clinicians focused not only on how to begin to address these issues in their clinics, but on how to discuss these issues more deeply and effectively with their students. This essay highlights the ways in which the pandemic school year influenced significant rethinking of one CED clinic’s operations: first, the pandemic sharpened the clinic’s mission to …

Regulating New Fossil-Fuel Appliances Under Section 111(B) Of The Clean Air Act, Jack Lienke, Rachel Rothschild, Henry Engelstein, Nardos Girma

Other Publications

The majority of residential and commercial buildings use appliances powered with fossil fuels for space and/or water heating. Collectively, these appliances—most of which run on natural gas—emit substantial quantities of a variety of harmful air pollutants, including particulate matter, nitrogen oxides (“NOx”), and carbon dioxide. Fossil-fuel appliances in the U.S. emitted over 425,000 tons of NOx in 2017—almost three times the amount attributable to gas-fired power plants in that year. And fossil-fuel combustion in residential and commercial buildings accounted for almost 10% of the nation’s greenhouse gas emissions in 2019—only slightly less than gas power plants. Yet while the U.S. …

Is The Net Investment Income Tax A Treaty Override? Reflections On Toulouse, Reuven S. Avi-Yonah

Articles

In this article, AviYonah examines the U.S. Tax Court's judgment in Toulouse that the denial of foreign tax credits against the net investment income tax imposed by the Affordable Care Act was not a violation of U.S. tax treaties with France and Italy and its implications for whether the base erosion and antiabuse tax is a treaty override.

Funding Global Governance, Kristina B. Daugirdas

Law & Economics Working Papers

Funding is an oft-overlooked but critically important determinant of what public institutions are able to accomplish. This article focuses on the growing role of earmarked voluntary contributions from member states in funding formal international organizations such as the United Nations and the World Health Organization. Heavy reliance on such funds can erode the multilateral governance of international organizations and poses particular risks for two kinds of undertakings: normative work, such as setting standards and identifying best practices; and evaluating the conduct of member states and holding those states accountable, including through public criticism, when they fall short. International organizations have …

2021 Fall Class Schedule, University Of Michigan Law School

Class Schedules

Class schedule for the 2021 Fall semester at the University of Michigan Law School

Why Are You Here? Modeling Illicit Massage Business Location Characteristics With Machine Learning, Anna White, Seth Guikema, Bridgette Carr

Articles

Illicit massage businesses are a venue for sex and labor trafficking in the United States. Though many of their locations are made publicly available through online advertising, little is known about why they choose to locate where they do. In this work, we use inferential modeling to better understand the spatial distribution of illicit massage businesses within the U.S. Based on addresses web-scraped weekly from online advertisements over 6 months, we modeled illicit massage business prevalence at the census tract and county levels. We used publicly available data to characterize census tracts and counties, finding that the state in which …

Funding Global Governance, Kristina B. Daugirdas

Articles

Funding is an oft-overlooked but critically important determinant of what public institutions are able to accomplish. This article focuses on the growing role of earmarked voluntary contributions from member states in funding formal international organizations such as the United Nations and the World Health Organization. Heavy reliance on such funds can erode the multilateral governance of international organizations and poses particular risks for two kinds of undertakings: normative work, such as setting standards and identifying best practices; and evaluating the conduct of member states and holding those states accountable, including through public criticism, when they fall short. International organizations have …

Contract Schemas, Roseanna Sommers

Articles

This review draws on the notion of “contract schemas” to characterize what ordinary people think is happening when they enter into contractual arrangements. It proposes that contracts are schematically represented as written documents filled with impenetrable text containing hidden strings, which are routinely signed without comprehension. This cognitive template, activated whenever people encounter objects with these characteristic features, confers certain default assumptions, associations, and expectancies. A review of the literature suggests that contract schemas supply (a) the assumption that terms will be enforced as written, (b) the feeling that one is obligated to perform, and (c) the sense that one …

Financial Toxicity During Breast Cancer Treatment: A Qualitative Analysis To Inform Strategies For Mitigation, Laila A. Gharzai, Kerry A. Ryan, Lauren Szczygiel, Susan Goold, Grace Li Smith, Sarah T. Hawley, John A.E. Pottow, Reshma Jagsi

Articles

Financial toxicity from cancer treatment is a growing concern. Its impact on patients requires refining our understanding of this phenomenon. We sought to characterize patients' experiences of financial toxicity in the context of an established framework to identify knowledge gaps and strategies for mitigation. Semistructured interviews with patients with breast cancer who received financial aid from a philanthropic organization during treatment were conducted from February to May 2020. Interviews were transcribed and coded until thematic saturation was reached, and findings were contextualized within an existing financial toxicity framework. Thirty-two patients were interviewed, of whom 58% were non-Hispanic White. The mean …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 120, Issue 1 of Michigan Law Review

Reviving Antitrust Enforcement In The Airline Industry, Jonathan Edelman

Michigan Law Review

The Department of Transportation (DOT) has broad but oft overlooked power to address antitrust issues among airlines through section 411 of the Federal Aviation Act. However, the DOT’s unwillingness to enforce antitrust more aggressively may be translating into higher fares and fees for airline travelers.

More aggressive antitrust enforcement is urgently needed. Recent research has revealed a widespread practice of common ownership in the airline industry, whereby investment firms own large portions of rival airline companies. Although this practice leads to higher prices and reduced competition, antitrust regulators, from the DOT to the Department of Justice and the Federal Trade …

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William Michael Treanor

Michigan Law Review

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

Ramirez V. Collier: Brief Of Scholars Of The Plra And Prison Grievance Systems As Amici Curiae In Support Of Petitioner, Margo Schlanger

Appellate Briefs

Amici are academic experts on the Prison Litigation Reform Act (PLRA) and prison grievance systems and legal scholars who teach and write on constitutional law, civil rights, and prison issues. This Court has asked the parties to address whether petitioner John Ramirez adequately exhausted his audible prayer claim under the PLRA. Amici aim to assist the Court in analyzing this question.<\p>

Amici have decades of experience interpreting, studying, and analyzing the PLRA and the grievance process. They understand how the PLRA is written and how it is applied. And, although amici seek the same result as the petitioner, they also …

Arguing About The Jus Ad Bellum, Monica Hakimi

Book Chapters

In January 2020, the United States conducted a targeted airstrike against Iranian General Qasem Soleimani, who at the time was on official business in Iraq. Soleimani had commanded an Iranian military unit that supported armed groups throughout the region, including in Iraq. He likely was involved, directly or indirectly, in countless incidents of low-level violence against the United States and its allies. Nevertheless, the US attack on him was especially brazen and seemed to up the ante. It raised the possibility, or at least created some chatter, that the two countries were heading toward all-out war.

Most analysts who assessed …

New York State Rifle & Pistol Association, Inc. V. Bruen: Brief Of Amici Curiae Former National Security Officials In Support Of Respondents, Barbara L. Mcquade

Appellate Briefs

Amici are former federal national security and law enforcement officials who have significant experience protecting our communities from acts of terror and domestic extremist violence. Amici represent a broad cross section of the national security community, including former career and politically appointed officials from the National Security Council staff, Office of the Director of National Intelligence, National Counterterrorism Center, Central Intelligence Agency, Department of Defense, Department of Homeland Security, Department of Justice, Federal Bureau of Investigation, and Department of State.<\p>

As experienced counterterrorism officials, prosecutors, and law enforcement officers, Amici understand that unfettered access to firearms poses a grave national …

Dobbs V. Jackson Women's Health Organization: Brief For Constitutional Law Scholars Lee C. Bollinger, Erwin Chemerinsky, Sherry F. Colb, Michael C. Dorf, Daniel Farber, Joanna L. Grossman, Leah Litman, Martha Minow, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David A. Strauss, And Laurence H. Tribe As Amici Curiae Supporting Respondents, Leah Litman

Appellate Briefs

Amici, listed in Appendix A, are constitutional law scholars who teach and write in the field of constitutional law, including on limits on the regulation of abortion. They share an interest in promoting the stability of this Court’s abortion jurisprudence as well as its continuity with the constitutional law governing related rights.<\p>

For nearly 50 years, the Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects a woman’s fundamental right to decide whether to have an abortion. See Roe v. Wade, 410 U.S. 113, 153-54 (1973). Accordingly, in Roe, the Court held that prior …

A Gendered Right To Counsel?, Maureen Carroll

Reviews

The civil and criminal justice systems are built on an adversarial model, but only in the criminal sphere does the defendant possess a constitutional right to representation at public expense. As a result, while representation is the default in criminal cases, more than three quarters of civil cases involve an unrepresented party.That disconnect flows from the Supreme Court’s decisions in Gideon v. Wainwright and Lassiter v. Department of Social Services. Gideon held that the Constitution guarantees a right to counsel for a defendant facing imprisonment for a criminal offense, regardless of the nature of the crime or the length of …

Blue Racing: The Racialization Of Police In Hate Crime Statutes, Christopher Williams

University of Michigan Journal of Law Reform

Content warning: this Article discusses police brutality.

The relationship between race, law, and policing is one that has been analyzed by many scholars throughout U.S. history. The vast majority of research about police has highlighted policing in relation to groups they police, focusing on areas such as policing practices, policies, or involvement in the racialization of minority groups. This scholarship has far outpaced research on actions taken by law enforcement on behalf of law enforcement— specifically, how law enforcement engages in racialization out of self-interest. A better understanding of the ways in which law enforcement engages in racialization that is …

Individuals As "Employees" Or "Contractors": Why It Matters What You Are Called When It Comes To Federal Taxes, Robert Eisentrout

Michigan Business & Entrepreneurial Law Review

When we file federal taxes, our individual tax burdens are affected by whether our employers and the IRS classify us as “employees” or “contractors.” Today, that distinction is not a neat one. Classifying workers as “employees” or “contractors” belies increasing similarities—like the ability to work remotely during the COVID-19 pandemic—between those classifications. With those increasing similarities in mind, this Note makes two arguments about the employee / contractor distinction in federal tax law. First, federal tax law draws an increasingly arbitrary and unfair line between employees and contractors given the modern substantive convergence of work done as an “employee” or …

Board Diversity Shareholder Suits: Diverging Materiality Tests Under Rules 10b-5 And 14a-9, John C. Friess

Michigan Business & Entrepreneurial Law Review

Environmental, social, and governance (ESG) investing has grown significantly as an investment strategy over the past decade, leading to intensified demands among investors for more ESG disclosures from publicly listed companies. Perhaps the most high-profile example of this trend is the recent widespread demand among institutional investors, proxy advisory firms, and exchanges for more disclosure and compliance as it relates to board and workplace diversity. Given these efforts and the signals coming from the SEC that it intends to take a more proactive approach to ESG disclosure and compliance, issuers can expect an environment of more specific and detailed diversity …

Front Matter, Michigan Business & Entrepreneurial Law Review

Michigan Business & Entrepreneurial Law Review

Front Matter for Volume 11, Issue 1 of Michigan Business & Entrepreneurial Law Review

Six Scandals: Why We Need Consumer Protection Laws Instead Of Just Markets, Jeff Sovern

Michigan Business & Entrepreneurial Law Review

Markets are powerful mechanisms for serving consumers. Some critics of regulation have suggested that markets also provide consumer protection. For example, Nobel Prize-winning economist Milton Friedman said “Consumers don’t have to be hemmed in by rules and regulations. They’re protected by the market itself.” This Article’s first goal is to test the claim that the market provides consumer protection by examining several recent incidents in which companies mistreated consumers and then explores whether consumers stopped patronizing the companies, which would deter misconduct. The issue also has normative implications because if markets consistently protected consumers, society would need fewer regulations and …

Constructing The Yellow Brick Road: Preventing Discrimination In Financial Services Against The Lgbtq+ Community, Cyrus Mostaghim

Michigan Business & Entrepreneurial Law Review

The Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning (“LGBTQ+”) community lacks explicit statutory protections from discrimination in financial services. After the Supreme Court held in Bostock that employment discrimination based on sexual orientation or gender identity was illegal, the Consumer Financial Protection Bureau (CFPB) issued an informal interpretive rule for the Equal Credit Opportunity Act (ECOA) and Regulation B that made discrimination in the access to credit based on sexual orientation or gender identity illegal.

However, this article argues that an informal interpretive rule is easily rescinded and does not provide sufficient protection. Thus, alternative action is needed to create …

Taxation And Business: The Human Rights Dimension Of Corporate Tax Practices, Reuven S. Avi-Yonah

Book Chapters

The response of both developed and developing countries to global developments has been first, to shift the tax burden from (mobile) capital to (less mobile) labour, and second, when further increased taxation of labour becomes politically and economically difficult, to cut government services. Thus, globalization and tax competition lead to a fiscal crisis for countries that wish to continue to provide those government services to their citizens, at the same time that demographic factors and increased income inequality, job insecurity and income volatility that result from globalization render such services more necessary. This chapter argues that if government service programs …